The city council of Fremont, Nebraska (pop. 25,000), is expected to decide Tuesday whether to delay enforcement of a new illegal immigration law because of legal challenges by civil rights groups. The ordinance, which would prohibit businesses from hiring and landlords from renting to illegal immigrants, was approved by voters June 21 and is scheduled to go into effect on Thursday.
Immigration experts say the case could be a useful barometer of public sentiment and could provide indications of the mood of courts in the wake of scores of such laws being introduced in several states after Arizona’s tough immigration law passed in April. That law, pending a federal injunction, is also due to take effect Thursday.
Historically, such laws have not survived. A similar law was struck down in Hazelton, Pa., in 2006, and the US Supreme Court struck down a Nebraska state law in 1923 that restricted foreign-language education because it violated the 14th Amendment, points out Robert Langran, a political scientist at Villanova University. [Editor's note: The original gave the wrong year that the Supreme Court struck down the Nebraska law.]
In the Nebraska case, the American Civil Liberties Union (ACLU) and the Mexican American Legal Defense and Educational Fund (MALDEF) are suing, claiming the ordinance amounts to discrimination.
The law would subject landlords who knowingly rent to illegal immigrants could to $100 fines, and would require employers to check a federal online system to determine whether a person is permitted to work in the US.
In addition, it would require people to apply for a $5 City Hall permit before renting property. Those who said they were citizens would get a permit without having to provide evidence of their legal status. Those who said they were not citizens would still receive permits, but their legal status would be checked. If their status was found wanting, they would be forced to resolve it or leave the property.
Fremont appears to be leaning away from a court fight for cost reasons – officials have estimated that implementing the ordinance, including legal fees, would average $1 million per year.
Legal experts say that sets a bad precedent.
“City Councils should not suspend ordinances just because they might be expensive,” says Jessica Levinson, adjunct professor of law at Loyola Law School. “The voters have spoken, and passed this ordinance. Regardless of the merits (or constitutionality) of this particular ordinance, it would set a bad trend if elected bodies start to fail to implement newly passed initiatives,” she says.
Robert Stern, president of the Center for Governmental studies, agrees. “I have problems with this action by the council since the ordinance was adopted as an initiative measure by the voters,” he says. “The council should have opposed the measure when it was on the ballot,” he says.
Critics of the suits say they amount to intimidation. “The strategy is essentially, ‘You may want to take actions to deal with illegal immigration? It may be what the citizenry wants, but if you try, we’ll bleed you dry in the courts,’“ says Ira Mehlman, spokesman for the Federation for American Immigration Reform (FAIR).
Others say the Fremont City Council is right to look at the costs associated with enacting any kind of legislation.
“Good public policy involves weighing all the costs and benefits of enacting legislation," says Mary Giovagnoli of the American Immigration Council's Immigration Policy Center. "While Fremont may be motivated in this case to suspend the law because of the fear of litigation costs, there are numerous other costs to consider," she says, "including the loss of revenue to the town when people leave, stop supporting local businesses and paying taxes, as well as the psychological impact when a town goes down the road of driving people away."